Let's Take Back the Debates!

by Jamin B. Raskin

The Nation magazine, Feb. 7, 2000

If Jesse Ventura had been excluded from the Minnesota gubernatorial debates in 1998, he almost certainly would have lost his run for governor. But the Reform Party nominee-a giant, bald, all-pro wrestler derided by the state establishment as frivolous and unelectable-was invited to participate in the eight televised debates of that campaign, and by the end of these spirited discussions, Minnesotans concluded that Ventura had far more ambitious plans for their state than did the two-party-system retreads he trounced on Election Day.

At the presidential level, where campaigns have been subsumed by private wealth and corporate power, the suggestion that general-election debates be opened up to outsider-candidates and citizen questioners is considered heretical. Presidential debates are designed not as the focal point in a broad public dialogue among our divergent political forces-Democratic, Republican, Independent, Reform, Libertarian, Green-but as a ritual celebration of the two-party system and its incestuous marriage to corporate capital. In every pundit's revealing metaphor, debates are the "Super Bowl of American politics," a bipartisan campaign commercial brought to you by corporate sponsors who profit from America's money politics regardless of which team prevails on Election Day.

The official organizer is the Commission on Presidential Debates (CPD), which was set up by the Democratic and Republican National Committees in 1987 to oust the League of Women Voters, which had the temerity to invite Independent John Anderson to debate in 1980 and refused to be a marionette for the two parties. Despite its recent appalling insistence that it is "nonpartisan," the CPD was launched as an avowedly "bipartisan" corporation "to implement joint sponsorship of general election presidential and vice-presidential debates. . .by the national Republican and Democratic Committees between their respective nominees." It has been chaired continuously by Frank Fahrenkopf Jr. and Paul Kirk Jr., the former national Republican and Democratic party chairs and powerhouse lawyer/lobbyists. The debate commission has been scrupulously divided ever since between Democratic and Republican Party loyalists.

With truly comic solemnity, the CPD in 1996 made a show of pretending to consult a long list of arbitrary and manipulable "factors" to decide whether Ross Perot was "electable" and therefore eligible to debate. The fact that he was on the ballot in fifty states and the District of Columbia, had won 19 percent of the vote in 1992 and had received nearly $30 million in public funds to run was deemed insignificant. The key factors were the "professional opinions of the Washington bureau chiefs of major newspapers, news magazines, and broadcast networks," the "opinions of a comparable group of professional campaign managers and pollsters not then employed by the candidates under consideration" and the "published views of prominent political commentators."

When the CPD excluded Perot and the Green Party's Ralph Nader, it meant that the two pro-NAFTA, pro-GATT, pro-corporate, soft-money candidates were left to debate in peace while the anti-Establishment candidates, Perot and Nader, were branded "unelectable." When you declare certain candidates "not viable," you of course guarantee their non-viability and facilitate a conspiracy of silence on key issues.

The CPD's governance-by-pundits is such an affront to democracy that it is almost a relief to read the proceedings of a post-election conference at Harvard's Institute of Politics, which tell the true story of how an old-fashioned back-room political conspiracy actually shut the door on Perot in 1996. Explaining that the Clinton campaign "wanted the debates to be a nonevent," George Stephanopoulos, then a senior adviser to the President, detailed the dynamics of excluding Perot: "[The Dole campaign] didn't have leverage going into the negotiations. They were behind; they needed to make sure Perot wasn't in it. As long as we could agree to Perot not being in it we could get everything else we wanted going in. We got our time frame, we got our length, we got our moderator."

Although the CPD is well-known as a front group for the two parties, its enmeshment with corporate America is more obscure. The CPD has operated over the years by collecting millions of dollars in contributions from large corporations, which not only receive in return bundles of free debate tickets, receptions, trinkets and access to the candidates but also selective exposure to the American public. In 1992, after pumping into the debates some $250,000 in cash and in-kind contributions, Philip Morris won the right to hang a "large banner visible during post-debate interviews." It should have read: "The 1992 American presidential campaign, brought to you by the cancer industry."

Today's electoral-industrial complex is so tightly constructed that the same corporate interests bankrolling the CPD-which purports to make objective decisions on who should participate in the debates-also pump millions in soft money directly into Democratic and Republican coffers. Anheuser-Busch, a proud debate sponsor in 1992 and 1996, has given more than a million dollars in soft money directly to the DNC and RNC in the last four years. The corporate "king of beer" recently announced that, having given $550,000 to the CPD, it would be the "sole sponsor" of the presidential debate in St. Louis this year. Perennial debate sponsor Philip Morris gave more than $3 million to the two parties in 1996. Bank of America poured hundreds of thousands of dollars that year into the coffers of both major parties and the debates that advertised their candidates.

If the Federal Election Commission (FEC) had not itself been captured by the campaign industry, it could have blown the whistle on this outrageous corporate subsidization and promotion of two parties over the others. After all, federal election law categorically forbids corporate expenditures and contributions in federal elections, and these closed, two-candidate debates are nothing more than a disguised corporate contribution to the two parties that run national government. The blending of private corporate power with public elections is precisely the evil forbidden by the Federal Election Campaign Act.

Responding to a 1996 complaint by Ross Perot's campaign committee, Lawrence Noble, general counsel of the FEC, issued a report in 1998 finding "reason to believe" that the 1996 debates themselves constituted illegal campaign contributions and that the CPD was operating as an illegal "political committee" on behalf of the two major parties. Noble, who should be declared whistleblower of the nineties, wrote: "The role played by Clinton/Gore and Dole/Kemp in CPD's debate participant selection process and the role played by the DNC and the RNC in the creation of CPD suggest that CPD's major purpose may be to facilitate the election of either of the major parties' candidates for president."

But when Noble turned his report in to the FEC commissioners-Democrats and Republicans themselves appointed in a strictly bipartisan (and constitutionally dubious) manner- they unanimously voted to reject their own general counsel's conclusions. Citing the objectivity of the "pool of experts" consulted in the CPD's process, the FEC gave its blessing to the CPD's manipulable and tautological "electability" screen for debate participation.

In 2000 the debate issue could blow right open. Every public opinion poll done in 1996 showed huge majorities of the American people supporting the right of Perot to debate and registering disapproval of his exclusion. Public figures across the spectrum, even conservatives like George Will, are rebelling at the naked manipulation of public opinion through debate gerrymandering. The anarchic spirit of the Internet age is prepared to collide with the closed debates choreographed by the CPD.

In response to the 1996 debacle, the CPD has set a new criterion for debate participation: Candidates must average 15 percent support in five national public opinion polls a week before each debate. Amazingly, the CPD announced that it would be up to the pollsters themselves to decide whether to include third-party candidates in their polling questions. Thus, if two of the five polling organizations decided not to list hypothetical Green candidate Ralph Nader (most pollsters omitted him in 1996) and he therefore came in at zero, he would need to average 25 percent in the other three to make the cut. Of course, polls are famously skewed against outsiders from the start, and many people refuse to tell pollsters the truth: No pollster predicted Ventura would win, for example.

At any rate, the CPD is asking the wrong question. The relevant question is not, "Whom do you think you would vote for today before the debate has even taken place?" It is, "Whom do you want to see included in the debate so you can decide what the important issues are and to help clarify your choices and thoughts?" Yet the CPD, which purports to act in the public interest, would never touch this approach. As much as 76 percent of the public said Perot should be invited to debate in 1996, which gives you a sense of how dangerous procedural democracy would be to the guardians of rigged debate.

The CPD's arbitrary 15 percent polling figure is triple the statutory 5 percent that a new party needs to have collected in a presidential election for federal public funding of a subsequent campaign. Where does the CPD get the right to override not only federal law but constitutional democracy? Rule-by-pollsters defeats the whole idea of a campaign, which the CPD seems not to understand is more than just a mathematical contest over who will win. It is the way we float new political ideas and change public opinion. Abe Lincoln lost his campaign for the Senate against Stephen Douglas in 1858, but the program he spelled out in their famous debates captured the nation's imagination and led to his election as President two years later-on the relatively new Republican Party ticket at that.

It would not be hard to design both new debate-invitation criteria and a new commission that would broaden democratic discussion and still prevent the dread "cacophony" that the CPD constantly invokes (a problem that does not trouble Democratic and Republican managers when it takes place within their party primaries, as witnessed in numerous New Hampshire debates that have included Steve Forbes, George W. Bush, John McCain, Alan Keyes, Orrin Hatch and Gary Bauer). There should be two or three criteria for candidates to receive a debate invitation: The candidate should be (1) constitutionally eligible to serve as President; (2) on the ballot in a sufficient number of states-which takes hundreds of thousands of signatures-such that the candidate could actually collect a majority in the Electoral College; and (3), if the prior two criteria would produce more than five candidates, reasonably likely to affect the outcome of the election or to advance public discourse.

This last criterion is obviously open to interpretation, so the key question becomes who will be applying the criteria. Right now we have a commission of people selected for their service and loyalty to two parties purporting to speak for all Americans. There are no Independents, no Greens, no Reform Party members, no Libertarians involved. In other words, one-third of the public has no representation in this body. If we all agree that the debates should be held in the interests of the American people, why not develop a process that reflects all of the people?

Let us return to the old-fashioned American institution of the grand jury and invite twenty-three American citizens chosen at random to come together to deliberate and invite presidential

candidates to debate. They could also choose the moderators and questioners, who do not have to be journalists. Why not also union leaders, university presidents, businesspeople, historians? Why not the citizen-members of this grand jury themselves? Everyone remembers Bernard Shaw asking Michael Dukakis in 1988 whether he would favor the death penalty for a man who raped his wife. The Democrat's wooden response sealed his fate. But Shaw could also have asked the pro-life George Bush whether, if his wife or daughter were raped, he would insist on her bringing a resulting pregnancy to term.

If there is any hope of derailing a corporate takeover of the 2000 election, our much-celebrated but underutilized "civil society" in the United States-the universities, foundations, unions and civic groups-must stand up and reclaim our debates and our campaigns. One of the wonderful things about the Lincoln-Douglas debates was the spirited interaction between the audience and the candidates, complete with cheers, jeers and well-timed heckling. It is a measure of our democratic disempowerment today that the American people are completely passive spectators in our presidential debates, consumers of a controlled corporate spectacle that wears our expectations like an armored suit and may as well be offering us a choice between Budweiser and Bud Light.

Jamin B. Raskin is a professor of constitutional law at American University s Washington College of Law and director of its Appleseed Project on Electoral Reform. In 1996 he represented Ross Perot in his efforts to be included in the presidential debates. He is the author of "The Debate Gerrymander" in the June 1999 Texas Law Review.

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